PSGB# P-2023-00109; P-2023-00110; P-2023-00111; P-2023-00112

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Thompson et al

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Blake Thompson, Janice White, Diane Bartlett, Mark Norton

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS:

Employer: June 23, 2023 Complainants: July 6. 2023 Employer Reply: July 14, 2023

Decision

1The Complainants, Blake Thompson, Janice White, Diane Bartlett and Mark Norton, all currently occupy the home position of Sergeants at the Quinte Detention Centre in Napanee (“Quinte”) operated by the Ministry of the Solicitor General (“the Employer” or “the Ministry”). In these applications under The Public Service of Ontario Act, 2006, S.O., 2006, c.35, Sched. A (“PSOA”), the Complainants challenge their treatment in relation to the Ministry’s restructuring of certain classifications, including the Sergeant position, announced November 2, 2022.

2While filed as individual applications, as they are virtually identical they were scheduled for a Case Management Conference concurrently before me on June 5, 2023. At that time, counsel advised that the Employer intended to make a preliminary objection regarding the Board’s jurisdiction to hear all four applications. The parties were directed to make written submissions regarding the preliminary objection. This decision thus deals with the Employer’s preliminary objection to these applications being heard by the Board.

The Applications

3In considering the Employer’s motion, I must assume that the facts stated in the applications or complaints are true and can be proven. The four applications all contain the following statement of particulars:

As part of the Institutional Services Organization Structure re-alignment pursuant to GSB Decision dated FEBRUARY 24 2022 (GSB #2013-4247 + 2018-1169), I was deemed to have selected option #1 in my option letter, which clearly indicates in writing that I was to remain in my sergeant position and be re-classified to a correctional supervisor position in the OPSEU-COR bargaining unit at QUINTE DETENTION CENTRE. The option letter provided to me by the employer stated it was both FINAL and BINDING and had a deadline of February 28, 2023.

March the 8, 2023, I was given a letter by my employer that I would be re-assigned to CENTRAL EAST CORRECTIONAL CENTRE which contradicts option # 1 that clearly states by the employer “OPSEU-COR bargaining unit at QUINTE Detention Centre.”

Being transferred to another correctional facility was not listed in the option letter which clearly stated that the correctional supervisor position that I chose was to remain at Quinte Detention Centre.

4By way of remedy, the applications seek the following:

“Full redress. To remain at Quinte Detention Centre as a correctional supervisor as the option letter stated, for which I was deemed as such.”

5In addition, Ms. White seeks reimbursement for 120 days of vacation, as she asserts that her vacation was ruined due to the stress caused by the Employer’s plan to relocate her.

6From the documents attached to the applications, the following additional facts can be assumed to be true and provable.

7In May 2022, the Employer announced an organizational review of supervisory and management functions in correctional institutions.

8The announcement referenced the February 24, 2022, Grievance Settlement Board (GSB) decision in Association of Management, Administrative and Professional Crown Employees of Ontario (Association) v Ontario (Solicitor General), 2023 CanLII 72160 (ON PSGB), 2022 CanLII 31316 (ON GSB). This is also the decision referenced in the Complainants’ particulars. In that decision, Arbitrator McLean found that the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) had relinquished their bargaining rights for the Sergeant and Staff Sergeant cadre. He further ruled that the Ontario Public Service Employees’ Union (“OPSEU”) holds the bargaining rights for the group, should it be determined that the positions are incorrectly excluded from union bargaining units. Arbitrator McLean referred the matter back to the Employer and OPSEU to jointly address.

9On November 2, 2022, the Ministry announced the result of the organizational review and advised staff of a restructuring of the management level, introducing a supervisory level to the structure within the Institutional Services Division of the Ministry.

10The November 2, 2022 communication stated that there would be no involuntary job loss as a result of the restructuring.

11By way of letter dated January 30, 2023, the Complainants were given a choice to compete for and be considered for a promotion to the Staff Sergeant position, which is a higher classification of M08 with a higher salary range, or to remain in their Sergeant position and be reclassified into the Correctional Supervisor role, an OPSEU-represented position. They also had the option to resign or retire from the Ontario Public Service. They were given twenty business days to make their decision.

12In their election packages, “Option1” was worded as follows:

I elect to remain in my Sergeant position which I understand will be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit at Quinte Detention Centre. I understand that this selection is FINAL AND BINDING.

13At the bottom of the election form, the following passages appear:

“If you do not respond to this letter, you will be deemed to have selected Option 1 (elect to be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit at Quinte Detention Centre).

All elections at Quinte Detention Centre will be considered aggregately to ensure that operational needs of each institution are met. Effective dates of new assignments will be determined by the Ministry at a future date.

[emphasis in the original]

14None of the Complainants responded to the January 30, 2023, letter. They were therefore deemed to have selected OPTION 1 as described above.

15The Complainants then each received a letter dated March 6, 2023, containing the following passages:

Accordingly, you have been deemed to have selected Option 1 [elect to be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit at Quinte Detention Centre).

In accordance with the letter dated January 30, 2023, the Employer has completed a review of the elections made and the operational requirements across the province. Please be advised that there is an insufficient number of Correctional Supervisor positions at the Quinte Detention Centre to accommodate the demand and overages have not been approved. As a result, you have been assigned to a Correctional Supervisor vacancy at the Central East Correctional Centre.

The Preliminary Objection and Response

16The Employer submits that at their root these complaints arise as a result of a re-classification of the Complainants’ home position into a new Correctional Supervisor classification in the OPSEU bargaining unit. That new classification has a similar salary structure as the classification that the complainants were in as Sergeants, albeit as employees represented by OPSEU. Ontario Regulation 378/07 (“the Regulation”) sets out what types of matters the Board can accept. Section 4(2) precludes complaints about, “the assignment of the public servant to a particular class of position.”

17It is submitted that the Board has held many times and it is well established law that this subsection of the Regulation restricts the Board’s jurisdiction over complaints about the classification and/or re-classification of a position in the Ontario Public Service. The Employer cites Johnston et al v. Ontario (Ministry of Community and Social Services), 2019 CanLII 65197 (ON PSGB) (“Johnston”). In that case the Board stated at para. 34: “There is no doubt that the PSGB lacks subject-matter jurisdiction over classification grievances” citing section 4(2) of the Regulation.

18The Employer submits that In accordance with the above, complaints about impacts of the re-classification such as those set out by the Complainants, are not within the jurisdiction of the Board. Nor can the Board take jurisdiction to comment about the fairness or appropriateness of the Employer’s policies or directives. This is due to the fact that they are related directly to the classification of a position. Furthermore, the facts (i.e. a potential move to another institution) do not crystalize until the moment the Complainants become members of OPSEU.

19The Employer argues that there is no existing term or condition concerning the Complainants’ current classification that is being complained about. When they will be re-classified, their position will be in the OPSEU bargaining unit. This Board has no jurisdiction to adjudicate over those terms and conditions as that is the sole jurisdiction of the GSB.

20The Complainants respond that they are not arguing about the classification or reclassification of their position to that of Correctional Supervisor. They accept that re-classification. Rather, they are arguing their relocation to the Central East Correctional Centre. They argue that they “were provided false, misleading and clearly omitted information by the employer about the realignment process…” They point to the election form, which expressly stated that if they did not respond (which was the case for all of them), “you will be deemed to have selected Option 1 (elect to be reclassified to a Correctional Supervisor position … at Quinte Detention Centre.” As current managers, they have the right to have their complaint regarding their rights and entitlements heard by this Board.

21The Complainants further submit that the Johnston decision is not relevant to these applications, as it has no factual similarities to these cases. Unlike Johnston, this case does not challenge the Complainants’ reclassification.

22The Complainants further submit, among other things, that during the “roadshow” conducted by the Employer to explain the reorganization at various institutions, they were given more false and misleading information. Their decisions were thus made based on the false and misleading information provided to them.

23The Employer replies that the key issue is the prospective transfer of the Complainants, once they become OPSEU members, to another institution. This is a matter between OPSEU and the Employer and, in the event of disagreement, would be before the GSB, not this Board.

24The Employer references a very recent decision of the Arbitrator McLean of the Grievance Settlement Board, Ontario Public Service Employees Union (Union) v The Crown in Right of Ontario (Ministry of Children, Community and Social Services and the Solicitor General), 2023 CanLII 61433 (ON GSB) (“the June 2023 GSB Decision”). The Employer states that decision makes it clear that the placement of how and where employees will be placed in the Correctional Supervisor classification may still be unknown. While disagreeing with that decision, the Employer argues that in any event it makes it clear that disputes about the placement of those moving into the Correctional Supervisor role is a matter properly before the GSB.

Decision

25In the June 2023 GSB Decision, Arbitrator McLean came to the following conclusions that are relevant here:

a. The Correctional Supervisor position is a “new position” within the meaning of OPSEU’s collective agreement;

b. None of the exceptions contained in the collective agreement in respect of job posting requirements pertain to this new position;

c. There is no provision in the collective agreement that would allow the Employer to “reclassify excluded employees” without engaging or impinging upon the Union’s rights under the collective agreement;

d. The Sergeants who have opted or been deemed to have opted for the Correctional Supervisor position were purportedly being placed by the Employer into such new positions in violation of the job posting requirements of the collective agreement. The job posting requirements must be respected; and

e. The issue of remedy was remitted to the parties, with Arbitrator McLean reserving jurisdiction. In doing so, he noted that, “These circumstances cry out for immediate open-minded and flexible action by both parties to alleviate a situation that is deeply unfair.”

26It is thus clear that the issue of who, how and where employees will be placed into the new Correctional Supervisor positions remains unresolved.

27Can this Board properly decide on its jurisdiction to consider these applications, in these circumstances?

28In my view, it is premature to determine whether there are any elements of the applications over which this Board has jurisdiction. Only after the Employer has determined how it will respond to the June 2023 GSB Decision (with or without the agreement of OPSEU) will the situation be sufficiently crystallized to make such a determination.

29Until then, having regard for the June 2023 GSB Decision, it is unclear whether the Employer’s planned relocation of the Complainants to Central East Correctional Centre in the Correctional Supervisor position can or will take effect. The ultimate assignment or re-assignment of the Complainants may well change. Therefore, the very basis for the applications may disappear or change substantially. Until the fate of the Complainants is known, at least as far as the Employer’s plans go, the fundamental nature of the Complaints cannot be determined. Until then, the question of the Board’s jurisdiction in respect of the complaints also cannot be determined.

30Similarly, it would seem imprudent for the Board to rule on the immediate preliminary objection and provide reasons, when the factual circumstances are in a state of flux. Doing so may simply complicate matters unnecessarily.

31For these reasons, the Board reserves its decision regarding the Employer’s preliminary objection regarding its jurisdiction to hear these applications, until such time as the Employer’s response to the June 2023 GSB Decision is known. At that time, the Complainants may amend their applications as appropriate, having regard for their evolving circumstances. The Employer may then renew or revise its preliminary objection if it deems it appropriate to do so.

32These applications are therefore adjourned sine die. They can be brought back on by any of the parties, with written notice to the other parties. In that event, the remaining applications will be consolidated and heard together.